The event triggering the call for heavier government regulationof the Internet was the U.S. Court of Appeals for the D.C. Circuit’sruling this month that the FCC overstepped its authority in orderingComcast to stop hindering peer-to-peer file sharingapplications on its network (see “Court Saps FCC’sStrength on ’Net Protection,” April 12, page 10).

To some, the way around this legal setback — to“protect” the Internet from cable companies and telcos— is for the FCC to just reclassify broadband asa “telecommunications service” (Title II under theCommunications Act) whereas it’s currently regulatedas an integrated “information service” (Title I).

If regulated as Title II carriers, broadband providerswould have to provide “communication serviceupon reasonable request therefore”; to charge “justand reasonable” rates; to refrain from engaging in“unjust or unreasonable discrimination”; to complywith FCC requirements for filing and abiding by written tariff s; tointerconnect with other carriers; and to collect fees for the universalservice fund and other programs.

Simple, right? Wrong.

There are several problems with the idea — frst of which isthat it would run contrary to 12 years of precedent at the FCC,as Mayer Brown partner Howard Waltzman pointed out to MultichannelNews’ John Eggerton.

And it would create a legal mess that would take years to sortthrough, according to former FCC chairman Michael Powell. “Ihate the idea of Title II for broadband,” Powell said in an interviewwith The Washington Post. “I think we would really regret it becausefor a regulator versed in what it means, it means thousandsand thousands of pages that would fall into this space and wewould spend our lifetime trying to clean it up. And the real worryis that we will enter another prolonged period of litigation.”

Network-neutrality advocates insist the additional regulatoryburden is worth it to “protect” the Internet, and ensure itremains “open.”

Ironically, however, if broadband were brought under TitleII regulations, companies like YouTube, Netflix, Hulu, Google,Skype, eBay and Amazon.com — and thousands of others —could find themselves under the FCC’s regulatorypurview, subject to the same red tape about whetherthe rates and terms of their services are “unjustand unreasonable.”

That’s because the U.S. Supreme Court, in itsBrand X ruling in 2005 affirming cable-modem serviceas a Title I information service, said that reclassifyingcable broadband as a telecommunicationsservice “would subject to mandatory commoncarrierregulation all information service providersthat use telecommunications as an input to provideinformation service to the public.”

And that would prompt uncertainty about the FCC’slegal authority over all Internet services, regardless ofwhether they’re facilities-based. “At best, it would indisputablymire all aspects of the Internet in years of investment-deterring,innovation-stunting legal uncertainty while the Commissionand the courts sort through a new generation of mind-glazingstatutory characterization disputes,” a coalition of cable and telcointerests, including the National Cable & TelecommunicationsAssociation, CTIA, Time Warner Cable, Verizon and AT&T,wrote in a Feb. 22 joint letter to the FCC.

Will the FCC open this can of worms — all in the name of “protecting”Internet users from hypothetical anticompetitive actionsthat broadband providers might take at some point in the future?

I trust cooler heads will prevail, once the “mind-glazing”ramifications are considered.